Definitions

1   In this regulation:

"Act" means the Tobacco and Vapour Products Control Act;

"dealer" means a dealer under section 1 of the Tobacco Tax Act;

"minor" means a person who is under 19 years of age;

"point of sale system" means a digital, electric, manual or mechanical system for calculating and recording sales transactions;

"retail establishment" means the location at which a retailer deals in, sells, offers to sell or distributes tobacco or vapour products.

[am. B.C. Reg. 149/2016, App. 1, ss. 2 and 3.]

Prescribed organization

1.1   For the purposes of paragraph (b) of the definition of "health board" in section 2.21 (1) of the Act, the Provincial Health Services Authority is a prescribed organization.

[en. B.C. Reg. 10/2020.]

Minimum age of 19 years

2   The age for the purposes of section 2 (2) of the Act is 19 years.

Prescribed forms of identification

3   The following forms of identification are prescribed for the purposes of section 2 (2.1) (a) of the Act:

(a) a passport;

(b) a driver's licence that displays a photograph and the date of birth of the holder;

(c) an identification card, issued by a government agency, that displays a photograph and the date of birth of the holder.

Minimum package size

4   The minimum number of cigarettes that must be in a package if the package is to be sold, offered for sale, distributed, advertised or promoted to persons is 20.

Definitions respecting where tobacco and vapour products not to be sold

4.1   For the purposes of section 2.1 of the Act:

"building or structure" includes part of a building or structure;

"campus" means property or part of a property that is

(a) owned or leased by, or operated under the authority of, a public university or other public post-secondary institution, and

(b) used primarily for the purposes of

(i) delivering educational programs or other learning programs,

(ii) research,

(iii) providing student services, or

(iv) providing services by affiliated student organizations,

and includes real property and improvements, personal property and, if the property includes common areas between improvements, the common areas;

"public body" means the following bodies:

(a) a municipality;

(b) a regional district;

(c) the trust council, the executive committee, a local trust committee and the trust fund board, as these are defined in the Islands Trust Act;

(d) a library board as defined in the Library Act;

(e) any board, committee, commission, panel, agency or corporation that is created or owned by a body referred to in paragraphs (a) to (d) and all the members or officers of which are appointed or chosen by or under the authority of that body;

(f) the Park Board referred to in section 485 of the Vancouver Charter.

[en. B.C. Reg. 394/2007, s. 3.]

Exemptions respecting where tobacco and vapour products not to be sold

4.11   The following classes of places are exempt from section 2.1 of the Act:

(a) land, or a building or structure, that is used by health care providers to deliver health care services, but is not owned or leased by a regional health board under the Health Authorities Act;

(b) space in a building or structure that is leased by

(i) the government, or

(ii) a Crown corporation or agency,

but is sub-leased to a person who is not government or a Crown corporation or agency;

(c) a building or structure that is owned or leased for investment purposes by a Crown corporation or agency, but is not used in conjunction with delivering a public service.

[en. B.C. Reg. 394/2007, s. 3.]

Interpretation respecting no smoking or vapour product use in or near certain places

4.2   (1) For the purposes of section 2.3 of the Act, a "workplace" means any place in which a person performs services in return for compensation, and includes any places that are used in conjunction with the workplace such as a bathroom, meeting room or building or structure used for taking breaks.

(2) If a workplace is located in a private dwelling, section 2.3 of the Act applies during any period in which a person performs services in return for compensation.

(3) For the purposes of section 2.3 of the Act, a building, structure, vehicle or any other place is fully or substantially enclosed if

(a) it has a roof or other covering, and

(b) more than 50% of the nominal wall space is enclosed by any material that does not permit air to flow easily through it.

(4) For the purposes of subsection (3), the "nominal wall space" is the area determined by calculating the length, in metres, of the perimeter of the building, structure, vehicle or place, and multiplying it by 2.7 metres.

[en. B.C. Reg. 394/2007, s. 3.]

Other places where smoking or vapour product use not permitted

4.21   For the purposes of section 2.3 (1) (a) (iii) of the Act, the following places are prescribed as places in which a person must not smoke tobacco, hold lighted tobacco, use an e-cigarette or hold an activated e-cigarette:

(a) common areas of apartment buildings, condominiums and dormitories;

(b) transit shelters.

[en. B.C. Reg. 394/2007, s. 3; am. B.C. Reg. 149/2016, App. 1, s. 4.]

No smoking or vapour product use near doorways, windows or air intakes

4.22   (1) For the purposes of section 2.3 (1) (b) of the Act, the prescribed distance from a doorway, window or air intake in which a person must not smoke tobacco, hold lighted tobacco, use an e-cigarette or hold an activated e-cigarette, is 6 metres.

(2) A transit shelter is exempt from section 2.3 (1) (b) of the Act.

(3) A patio used in conjunction with a public place is exempt from section 2.3 (1) (b) of the Act if all of the following conditions are met:

(a) the predominant use of the public place is

(i) to sell either food or beverages, or both, including alcoholic beverages, or

(ii) as a casino or bingo hall;

(b) the patio is not fully or substantially enclosed within the meaning of section 4.2 (3) of this regulation;

(c) any doorway between the patio and the public place is closed at all times while the patio is in use, except when used for entering or exiting the patio;

(d) any window or air intake between the patio and the public place is closed at all times while the patio is in use.

(4) A manager, owner or lessee of, or an employer at, a public place is exempt from liability under section 2.3 (3) or (4) of the Act, as applicable, in respect of any portion of the 6 metre area described in subsection (1) of this section over which the manager, owner, lessee or employer has no control, if a person smokes tobacco, holds lighted tobacco, uses an e-cigarette or holds an activated e-cigarette within that portion but that person is not

(a) in the control of the manager, owner or lessee, or

(b) an employee of the employer.

[en. B.C. Reg. 394/2007, s. 3; am. B.C. Reg. 149/2016, App. 1, s. 5.]

Exemptions from smoking and vapour product use bans

4.23   (1) In this section, "person in care or resident" means a person who is

(a) a person in care or a resident within the meaning of the Community Care and Assisted Living Act, or

(b) a patient of

(i) a hospital providing extended care within the meaning of paragraph (c) of the definition of "hospital" in section 1 of the Hospital Act, or

(ii) a private hospital within the meaning of Part 2 of that Act.

(2) The following persons are exempt from section 2.3 (1) (a) of the Act:

(a) a person in care or resident who smokes tobacco, holds lighted tobacco, uses an e-cigarette or holds an activated e-cigarette, in a room designated for tobacco or vapour product use within a community care facility, assisted living residence or hospital;

(b) a person who is registered as a guest under the Hotel Guest Registration Act, if the guest is smoking tobacco, holding lighted tobacco, using an e-cigarette or holding an activated e-cigarette, in the room or building in which the guest and the guest's party, if any, have been assigned exclusive accommodation;

(c) a person who uses an e-cigarette or holds an activated e-cigarette within the premises at which a retailer deals in, sells, offers to sell or distributes vapour products, if

(i) no minors are permitted in the premises,

(ii) the premises are fully enclosed such that no vapour may escape to an adjacent premises or to a public area outside the premises,

(iii) the person

(A) is the retailer or an employee of the retailer who holds an activated e-cigarette only to demonstrate the safe and proper use of the e-cigarette, or

(B) uses an e-cigarette or holds an activated e-cigarette only to sample an e-substance that, if purchased, will be consumed off the premises, and

(iv) no more than 2 persons are, at the same time, using an e-cigarette or holding an activated e-cigarette for the purpose of sampling an e-substance.

[en. B.C. Reg. 394/2007, s. 3; am. B.C. Reg. 149/2016, App. 1, s. 6.]

Exemptions for certain cannabis accessories

4.24   A vapour product that is a cannabis accessory, within the meaning of the Cannabis Control and Licensing Act, is exempt from the prohibitions set out in sections 2, 2.1 and 2.4 of the Act when it is dealt in, sold, offered for sale, distributed, provided, advertised, promoted or displayed by a person who is authorized to sell cannabis under section 15 of the Cannabis Control and Licensing Act.

[en. B.C. Reg. 213/2018, s. (a); am. B.C. Reg. 213/2018, s. (b).]

Repealed

4.3   Repealed. [B.C. Reg. 149/2016, App. 1, s. 7.]

Limits on advertising vapour products

4.301   A manufacturer, distributor, wholesaler, retailer, or a person acting on behalf of any of them must not advertise a vapour product in any place, whether inside or outside, by any means that may be seen, accessed or heard by a minor.

[en. B.C. Reg. 186/2020, App. 3, s. 1.]

Limits on advertising

4.31   (1) Without limiting section 4.301, a retailer must not, on the premises of a retail establishment, display tobacco or vapour products, or advertise or promote the use of tobacco or vapour products, in any manner by which the tobacco or vapour products or the advertisement or promotion

(a) may reasonably be seen, accessed or heard by a minor inside the retail establishment, or

(b) is clearly visible or audible to a person outside the retail establishment.

(2) For the purposes of subsection (1), "advertise or promote the use of tobacco or vapour products" means to advertise or promote the use of tobacco or vapour products by any means, including by

(a) displaying on a sign, video, clothing or other tangible object

(i) the name of a brand or manufacturer of tobacco or vapour products,

(ii) an abbreviation or other thing that would reasonably identify the name of a brand or manufacturer of tobacco or vapour products, or

(iii) a graphic, design or symbol that is commonly associated with the name of a brand or manufacturer of tobacco or vapour products, or

(b) making available any sign, video, clothing or other tangible object that displays any of the things set out in paragraph (a).

[en. B.C. Reg. 394/2007, s. 3; am. B.C. Regs. 149/2016, App. 1, s. 8; 186/2020, App. 3, s. 2.]

Some signs permitted

4.32   (1) Despite sections 4.301 and 4.31, a retailer may advertise within the premises of a retail establishment the types of tobacco and vapour products for retail by means of a sign that meets all of the following criteria:

(a) the sign must not be larger than 968 cm2;

(b) the background of the sign must be white only;

(c) the text of the sign must be black only;

(d) the letters in the text of the sign must not be higher than 5 cm;

(e) except for the "$" symbol in front of a price, the sign must not contain any graphic or design, or any symbol that is not an alpha-numeric character;

(f) the sign must not include the name of a brand or manufacturer of tobacco or vapour products;

(g) the sign must not include any abbreviation, or other thing that would reasonably identify the name of a brand or manufacturer of tobacco or vapour products;

(h) the sign may advertise only

(i) the types of tobacco and vapour products for sale, and

(ii) the prices of, or a price range for, those types of tobacco and vapour products.

(2) In respect of the signs described in subsection (1), a retailer must not do any of the following:

(a) have a sign that contravenes any of the requirements of subsection (1);

(b) have more than 3 signs on the premises of the retail establishment, including more than one sign at each point-of-sale system.

[en. B.C. Reg. 394/2007, s. 3; am. B.C. Regs. 149/2016, App. 1, s. 9; 186/2020, App. 3, s. 3.]

Warning signs

5   (1) A dealer who sells or offers for sale tobacco, but not vapour products, must do both of the following:

(a) display to purchasers the decal set out in Schedule 1;

(b) display to dealers and employees the decal set out in Schedule 1.1.

(2) A dealer who sells or offers for sale vapour products, but not tobacco, must do both of the following:

(a) display to purchasers the decal set out in Schedule 1.2;

(b) display to dealers and employees the decal set out in Schedule 1.3.

(3) A dealer who sells or offers for sale both tobacco and vapour products must do both of the following:

(a) display to purchasers the decal set out in Schedule 1.4;

(b) display to dealers and employees the decal set out in Schedule 1.5.

(4) A dealer who operates a vending machine that sells tobacco or vapour products

(a) must affix to the front of the vending machine the decal referred to in subsection (1) (a), (2) (a) or (3) (a), as applicable, and

(b) is not required to affix to the vending machine the decal referred to in subsection (1) (b), (2) (b) or (3) (b), as applicable.

(5) A dealer must ensure that decals that must be displayed under this section

(a) to purchasers are displayed in plain view to purchasers at the point and time of sale,

(b) to dealers or employees are displayed in plain view to the dealer or employee operating the point of sale system

(i) on or near the point of sale system, and

(ii) at the time of sale, and

(c) are not obscured by a sign, notice or any other thing that could make the decal less than fully visible.

[en. B.C. Reg. 149/2016, App. 1, s. 10.]

Prescribed provisions of the Act and regulation

6   (1) The following provisions of the Act are prescribed for the purposes of sections 6.1 (1) (a) [administrative penalties] and 6.5 [liability of employees, officers, directors or agents of corporation] of the Act:

(a) section 2 (2), (3) and (4) [prohibitions];

(a.1) section 2.4 [prohibitions on display or promotion of tobacco and vapour products];

(b) section 6.4 (1) [recovery of monetary penalty];

(c) section 10.1 [sign indicating prohibition order];

(d) section 10.3 [removing tobacco or vapour products from public display].

(2) The following provisions of this regulation are prescribed for the purposes of sections 6.1 (1) (a) and 6.5 of the Act:

(a) section 4 [minimum package size];

(b) section 5 [warning signs].

[am. B.C. Reg. 394/2007, s. 5.]

Notice of administrative hearing

7   (1) The administrator must provide notice to a person that the administrator intends to conduct a hearing to determine whether the person has committed a contravention of the Act or regulations.

(2) The notice under subsection (1) must be in writing and

(a) describe the contravention alleged to have been committed,

(b) specify the date, place and time of the hearing, and

(c) advise the person that the administrator may proceed with the hearing and make an order imposing an administrative penalty if the person fails to appear or provide submissions, as applicable.

(3) The notice must be delivered, at least 45 days before the time set for the hearing, by

(a) personal delivery to the person alleged to have committed the contravention,

(b) registered mail to the person at that person's last known address,

(c) facsimile to the person, or

(d) personal service on another person working at the location where the contravention is alleged to have occurred.

Form of hearing

8   (1) Subject to subsection (2), the administrator may hold any combination of written, electronic and oral hearings.

(2) The administrator may conduct all or part of a hearing in writing only after taking into consideration the views of the person who is the subject of the hearing with respect to proceeding in writing.

Failure to appear

9   If a person who has been served notice of an administrative hearing under section 7 fails to appear at a hearing or provide submissions, the administrator may proceed with the hearing and make an order imposing an administrative penalty on the person without further notice to that person.

Adjournments

10   (1) The administrator may adjourn a hearing on the request of the person who is the subject of the hearing, if the person satisfies the administrator that the adjournment is required to permit an adequate hearing to be held.

(2) In considering whether an adjournment should be granted, the administrator must have regard to the following:

(a) the reason for the adjournment;

(b) whether the adjournment would cause unreasonable delay;

(c) the impact on the person of refusing the adjournment;

(d) the impact of the adjournment on the public interest.

Information admissible in administrative hearings

11   (1) Subject to subsections (3) and (4), the administrator may receive and accept at a hearing information that the administrator considers relevant, necessary and appropriate, whether or not the information would be admissible in a court of law.

(2) Despite subsection (1), the administrator may exclude anything unduly repetitious.

(3) Nothing is admissible before the administrator that is inadmissible in a court of law because of a privilege under the law of evidence.

(4) Nothing in subsection (1) overrides the provisions of any Act expressly limiting the extent or purposes for which any oral testimony, documents or things may be admitted or used in evidence.

Defence of due diligence

12   A person must not be found to have contravened a provision of the Act or regulations prescribed under section 6 if the person demonstrates to the satisfaction of the administrator that the person exercised due diligence to prevent the contravention.

Factors to be considered in imposing administrative penalties

13   (1) In imposing an administrative penalty on a person for a contravention of a prescribed provision of the Act or regulations, the administrator must consider the following factors:

(a) whether an enforcement officer has given the person a prior written warning concerning the conduct that is the subject matter of the penalty;

(b) whether the person has an ownership interest in the business carried on at the location where the contravention occurred;

(c) in respect of a breach of section 2 (2) or (3) or 2.4 of the Act or section 4 of this regulation,

(i) whether the person is an employee or agent of the owner, and

(ii) if the person is an employee, whether and to what extent the owner or a person retained by the owner to operate the business provides training and monitoring of the person with respect to the sale of tobacco or vapour products, as applicable;

(d) in respect of a breach of section 2 (4), 10.1 or 10.3 of the Act, whether the person has knowledge of the prohibition order;

(e) any other matter the administrator considers relevant to the imposition of a penalty.

(2) In determining, under section 6.1 (2) (b) (ii) of the Act, if it is in the public interest to prohibit a person from selling tobacco or vapour products, as applicable, at retail from a location other than the location at which the contravention occurred, the administrator must consider all of the following:

(a) previous enforcement actions for contraventions of a similar nature by the person;

(b) whether the contravention was repeated or continuous;

(c) whether the contravention was deliberate;

(d) the person's efforts to correct the contravention;

(e) any other matter the administrator considers relevant to the public interest.

(3) If a person who commits a contravention is a franchisee, the administrator must not impose a prohibition order on another location operated independently at arm's length from the person by another franchisee of the same franchisor.

[am. B.C. Regs. 394/2007, s. 6; 149/2016, App. 1, s. 11.]

Monetary penalties

14   For a contravention of a provision referred to in Column 2 of Schedule 2, the range of monetary penalties set out opposite that provision in Column 3 may be imposed.

Prohibition periods

15   For a contravention of a provision referred to in Column 2 of Schedule 3, the range of prohibition periods set out opposite that provision in Column 3 may be imposed.

First, second and subsequent contraventions

16   For the purposes of Schedules 2 and 3,

(a) a contravention is of the same type as another contravention if each contravention is described by the same item of the Schedule, and

(b) a contravention by a person is

(i) a first contravention if the contravention was committed at or in respect of a location and the person has not committed a contravention of the same type at or in respect of that location within the 60 month period preceding the commission of the contravention,

(ii) a second contravention if the contravention was committed at or in respect of a location and the person committed one contravention of the same type at or in respect of that location within the 60 month period preceding the commission of the contravention, and

(iii) a subsequent contravention if the contravention was committed at or in respect of a location and the person has committed a second contravention of the same type at or in respect of that location within the 60 month period preceding the commission of the contravention.

Payment of monetary penalty

17   A person who is required by an order made under section 6.1 (2) of the Act to pay a monetary penalty must pay the penalty by cheque, money order or any form of electronic payment or transfer of funds, payable to the Minister of Finance, mailed to the administrator at the address indicated in the administrative penalty notice.

[am. B.C. Reg. 149/2016, App. 1, s. 12.]

Administrative penalty notice

18   (1) If the administrator, after providing a person the opportunity to be heard, makes an order imposing an administrative penalty on the person, then the administrator must, no later than 45 days after the date of the hearing, deliver an administrative penalty notice to the person made in accordance with subsection (2) by

(a) registered mail or facsimile,

(b) personal delivery to the person, or

(c) personal delivery of a copy of the notice to another person working at the location where the contravention occurred.

(2) An administrative penalty notice must include at least the following information:

(a) the name and address of the person subject to the administrative penalty;

(b) the date on which the hearing with respect to the imposition of the administrative penalty occurred;

(c) a description of the contravention that was the subject of the hearing;

(d) the administrative penalty imposed on the person after the hearing;

(e) if a monetary penalty was imposed, a statement that the penalty may be paid by cheque, money order or any form of electronic payment or transfer of funds;

(f) if a prohibition order was imposed,

(i) the location or locations to which the order applies, and

(ii) the dates on which the prohibition period begins and finishes.

[am. B.C. Reg. 149/2016, App. 1, s. 13.]

Signs indicating prohibition order

19   (1) Each dealer on whom a prohibition order has been imposed under section 6.1 (2) (b) of the Act must ensure that a sign described in subsection (2) and issued by the minister is posted at

(a) each place where a tobacco or vapour product, as applicable, was displayed for sale at the location identified in the order, or

(b) each entrance to the location identified in the order.

(2) Each sign referred to in subsection (1) must

(a) contain the following:

(i) the address of the location;

(ii) the dates on which the prohibition period commences and expires;

(iii) if the prohibition is in respect of tobacco and based on at least one contravention of section 2 (2) of the Act, a sign in the form set out in Schedule 5;

(iv) if the prohibition is in respect of a vapour product and based on at least one contravention of section 2 (2) of the Act, a sign in the form set out in Schedule 6;

(v) if the prohibition is in respect of tobacco and not based on at least one contravention of section 2 (2) of the Act, a sign in the form set out in Schedule 7;

(vi) if the prohibition is in respect of a vapour product and not based on at least one contravention of section 2 (2) of the Act, a sign in the form set out in Schedule 8, and

(b) Repealed. [B.C. Reg. 149/2016, App. 1, s. 14 (b).]

(c) not be obscured by a sign, notice or any other thing that could render a sign referred to in subsection (1) less than fully visible to any person.

[am. B.C. Reg. 149/2016, App. 1, s. 14.]